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The Consumer Rights for Domestic Violence Survivors Initiative

A partnership of


This document was supported by Grant No. 2007-VF-GX-K010 awarded by the Office for
Victims of Crime, Office of Justice Programs, U.S. Department of Justice. Points of view in
this document are those of the author and do not necessarily represent the official
position or policies of the U.S. Department of Justice.

Domestic Violence Screening Tool
For Consumer Lawyers

Developed by:
Erika Sussman, Center for Survivor Agency and Justice
Carolyn Carter, National Consumer Law Center

Consumer lawyers are uniquely positioned to provide domestic violence survivors with access to
critical economic resources. For survivors of domestic violence, there is no safety without
economic security, and there is no economic security without safety. To effectively advocate for
remedies that balance economic and physical safety considerations, consumer lawyers need to
identify whether their client is a survivor of domestic violence and acquire an understanding of
the risks and needs arising out of their clients experience. This document is intended to assist
consumer lawyers in determining who, among their clients, is a survivor of domestic violence in
order to enhance legal representation and advocacy.

Screening for Domestic Violence is Critical to Effective Representation

Asking a client whether or not she/he is a survivor of domestic violence can be a difficult
undertaking for many reasons. The client may not identify a relationship as abusive. Or
perhaps, as attorneys, we believe it is not our place to ask such personal questions. We might
feel that we are ill equipped to respond to the possible answers. However, if an attorneys client
is a survivor of domestic violence, such information can change their advocacy and provide
access to unique and valuable legal remedies.

Screening clients for domestic violence is necessary to ensure that attorneys are providing the
most competent and appropriate legal representation. Under the Model Rules of Professional
Conduct, competent representation requires inquiry into and analysis of the factual and legal
problem.
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The experience of domestic violence often impacts the risks that an individual client
faces, and therefore, significantly shapes their advocacy needs. Consumer lawyers (indeed, all
lawyers) should consider how the context of domestic abuse impacts their legal strategizingthe
nature of the legal claims they seek, the defenses available, the presentation of the case
(testimony, evidence, arguments), and the types of remedies they pursue. For example, a tax
attorney who is unaware of the presence of domestic violence may not avail the client of
innocent spouse relief. A foreclosure defense attorney who is unaware of the fact that a
financially abusive husband has failed to make mortgage payments may not think to coordinate
with family lawyers to compel the abuser to make payments or may neglect to mention hardships

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The Model Rules of Professional Conduct mandate that attorneys provide competent representation to a client
which requires the legal knowledge, skills, thoroughness and preparation necessary for the representation. Rule
1.1.

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posed by the abuse when advocating with lenders or before a foreclosure court. And, an attorney
assisting a client with prioritizing debt may not dispute credit card charges that were fraudulently
incurred by an abusive partner.

At the same time, a consumer lawyer unaware of the continuing safety risks posed by the threat
of retaliatory abuse will not know to move the court to keep a clients information confidential or
to request that payments by an abusive spouse be made to a third-party, rather than directly to a
survivor in hiding. Such safeguards can mean the difference between security and violence.
Legal strategies that fail to integrate safety and privacy considerations can lead to enormous
collateral consequences for a survivor (e.g. loss of employment, housing, child custody)-- harms
that may outweigh the benefits of seeking consumer remedies in the first instance. Simply put,
competent representation of domestic violence survivors requires that attorneys and survivors
partner to share information and devise strategies that integrate both safety and economic
considerations.

While it is an attorneys duty to screen for domestic violence, the attorney also must respect the
clients decision to not disclose information about the abuse. The client may determine that
sharing the information with her or his attorney poses a safety risk. Or, the trauma may be too
difficult for the client to discuss, despite the benefit to her or his legal case. Attorneys and
advocates need to respect that choice. Attorneys should ask direct questions about domestic
violence; however, if the client does not want to discuss the issue, the attorney should clearly
communicate that the door is always open for further discussion and assistance, on that or any
other topic.

The Nature of Domestic Violence

In order to screen for domestic violence, practitioners must have a fundamental understanding of
its basic nature. Below is a summary; however, it is advisable that attorneys obtain training in
the dynamics of domestic violence so that they can identify the common cues.

Domestic violence is coercive control. Social science literature describes intimate partner
violence as an array of physical assaults, sexual abuse, economic exploitation, psychological
degradation, property destruction, hostage-taking, terroristic threats, stalking, burglary, theft,
slander, and homicide Domestic violence is not a discrete act of violence. Rather, batterers
engage in a pattern of abusive conduct designed to achieve and maintain control over their
partner and to induce fear of the consequences for failure to comply.

Although violence is common in abusive relationships, there are many additional tactics that
abusers use to control and harm survivors. For example, an abuser may control a survivor by
threatening to take their children, refusing to follow through on the sponsorship of documented
immigration status, or controlling the survivors finances. The physical violence is but a
moment within a larger context of coercive control, used to re-enforce the abusers other
controlling non-physical behaviors. Abuse can impact all areas of a survivors life including
work, school, healthcare, housing, standard of living, and relationships with family, friends, and
children.


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Economic abuse often plays an integral role in a batterers coercive control tactics. Batterers
often sabotage their partners educational, job training, and employment opportunities; destroy
their credit either directly or by engaging in identity theft; and maintain complete control over
bank accounts and ATM cards. Batterers employ all of these acts of economic control and
sabotage to keep their partners financially dependent and expose them to increased risks of
violence.

Contrary to popular wisdom, leaving an abuser does not ensure the safety of a battered partner;
rather, separation increases the risk of retaliatory violence. Batterers use violence to prevent
their partners from leaving, to retaliate for the separation, and to force them to return. This
increased risk of violence is critical for attorneys to keep in mind as they strategize with their
clients. All consumer law strategies must be assessed in light of the survivors broader safety
plan.

When trying to discern whether or not a client is a survivor of domestic violence, it is important
for attorneys to be careful not to make assumptions based on a clients race, gender, socio-
economic class, age, or sexuality. Also attorneys should be aware of any stereotypes we possess
about the demeanor of a survivor of domestic violence. Each survivor will present differently.
For that reason, context is key. Only by gathering such information can the attorney determine
whether a client is a survivor of domestic violence.

Trust is Key to Effective Representation
People share information when they feel that they can trust the person with whom they are
talking. Because comprehensive representation requires information sharing by both advocate
and client, it is critical for attorneys to devote significant time and care to building trust with
their clients. As with all interviews, it will be important to explain to clients that
communication with their attorneys are protected by the attorney-client privilege. As attorneys
know, explaining privilege in simple terms is always important (i.e., that everything the client
tells an attorney is between the two of you and that attorneys can disclose only if they have the
clients permission ahead of time). Attorneys must be sure to explain any exceptions to
confidentiality that apply, such as mandatory reporting laws.
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A trusting relationship also
requires that attorneys engage in active-listening by paying close attention to what the client is
telling them and repeating back what they heard. An attorney who does most of the talking is
not hearing the clients story and not establishing trust. While we all have judgments as humans,
our clients can pick up on these judgments if we are not careful. To help ensure that attorneys
obtain honest answers and important information, they should approach these questions with
empathy and tolerance.




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Before conducting a screening, it is critical that attorneys familiarize themselves with any reporting obligations
that may exist in their state. While preserving the confidentiality of survivors is paramount, attorneys should know
that, in some instances, they may be required by law to report certain information, including suspected child abuse
and serious and immediate threats to the safety of the survivor or others. The parameters of these reporting
obligations vary widely from state-to-state. The same facts may, depending on the state, trigger a mandatory report,
a voluntary report, or no reporting obligation or right whatsoever.

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Sample Questions

These questions are sample questions. This is not designed to be a checklist of questions for
you to recite. You will need to use your interviewing acumen and judgment to determine how to
inject these screening questions into your practice. It will vary case-by-case. Sometimes, during
the course of an interview, a client will offer information that naturally lends itself to a follow-up
question, which will enable you to explore whether the client is or was in an abusive relationship.
In other instances, you might ask questions that apply to the subject matter of the legal issue that
your client has brought to your attention. And, in still other instances, you may need to approach
the topic more generically. Under all of these circumstances, it makes sense to begin with a few
open-ended questions and develop the conversation with the client from there. Allow the client
to tell her or his story without too much direction and ask more specific questions when you
believe you need more information. Of course, for privilege, privacy and safety reasons, you
should only engage in this conversation when your client is alone.

Consumer Case-specific Questions:
Coercive control can manifest in a variety of contexts. You are likely to find that the abuser has
exercised some level of control with respect to the economic issues at hand. The following are
examples of screening questions that might derive from a particular consumer issue:

If you file bankruptcy and [Co-Obligor] is left with responsibility for your debts, will that
create any problems for you?

I see that [name] is also listed on your mortgage [or lease]. Is this person still in the
home?

Do you know the person who used your personal information? Has this person done
other things to you? Are you afraid of this person?

Did you want to sign the lease? Did you have mixed feelings about signing it? How did
it happen that you ended up signing it?

Is there any reason why you cant agree to this? Are you worried about what anyone in
your family, your friends, or your partner might think or do?

It can be common for several people to use a car. Do any other people have use of the
car? Are there any issues between you and your partner about who gets to use the car?

Did your eviction have anything to do with your partners actions?

Did you tell your partner that he/she could make these charges? When did you first find
out about these charges?





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Financial Abuse:
You can more generally explore whether domestic violence is present by asking the client about
how finances are handled in the household.

Since this case involves [a debt that you are being asked to pay, or a mortgage that you
were induced to enter into, or a series of mistakes on your credit record, etc.], Id like to
get a full picture of your financial circumstances. May I ask you some questions about
how your household handles money?

Who lives in your household? What income does each of you have?

How do you and your partner handle finances?

Do you both have access to the money?

Is one of you in charge of paying the bills?

Do you have any bank accounts? Are they joint or separate?

Do you know where important papers, like checkbooks and financial statements, are
kept? Does your partner make it hard for you to see or use them if you want to?

Are you employed? Are you a student? Does your partner ever do anything that affects
your school/job? Does your partner ever make it hard for you to keep your job/ to go to
school?

General Screening Questions:
Even when a client does not indicate abuse related to her or his consumer case or financial
circumstances, attorneys should screen for domestic violence so they can a) make appropriate
referrals and b) integrate safety and privacy measures into the consumer-related case
strategizing. To reiterate, the following list of questions is not intended as a script. We do not
suggest that you ask all of these questions. Rather, the following questions are examples of ways
to broach the topic of domestic violence. Because these questions touch upon sensitive areas, the
questions should only be asked after the attorney has developed some rapport with the client.

[Preface] I ask these questions of all of my clients because abuse and violence are
common in relationships and because the information can greatly influence your legal
and non-legal options. Some of these questions may feel uncomfortable. If youd rather
not continue, please feel free to stop me at any time.

Do you have a spouse or partner?

Would you feel comfortable telling me about your partner? How would your partner
describe you?

Typically, what happens when you and your partner disagree?

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Has your partner ever acted in ways that scare you? If yes, can you tell me some more
about that?

Are you able to speak your mind or express your point of view to your partner?

When you speak your mind or express your point of view to your partner, does your
partner become angry, threatening, or intimidating?

How are decisions made in your relationship? Who makes what decisions?

Has your partner ever insulted you, put you down, or called you demeaning names?

Has your partner ever hurt or threatened to hurt you or members of your family?

Has your partner ever slapped, hit, pushed, or shoved you?

Has your partner ever threatened to hurt him or herself?

Has your partner ever hurt or threatened to hurt your pets?

Has your partner ever made you do something that you did not want to do?

Has your partner ever prevented you from taking your medication, seeing a doctor, or
going to the hospital?

Do you have children? Would you feel comfortable telling me about the relationship
between your children and your partner?

Who makes decisions about your children? How does your partner respond to the
decisions you make about the children?

Does your partner ever criticize you or your children in a way that intimidates you or
bothers you?

Has your partner ever threatened to take your children from you or threatened to never let
you see them again?

Does your partner act jealously (for example, frequently calling to check up on you)?

Has your partner tried to stop you from seeing your family or friends?

Do you have any concerns about a court case against your partner? What concerns you?

Do you feel safe at home?

What is your worst fear about going forward with X case/remedy?

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Safety Planning for Consumer Rights
If you determine that your client is a survivor of domestic violence, safety and privacy
considerations should guide your representation. Keep in mind that a consumer law remedy is
just one among numerous potential strategies that a survivor may employ within the context of a
much broader safety plan. A survivors decision to pursue a consumer legal remedy must make
sense in light of all that she/he knows about the risks posed by the batterer and the survivors
own economic and life circumstances. The survivor has expert knowledge of the batterers
conduct and must play an active role in the advocacy process. Therefore, you will serve your
client well if you take the time in subsequent interviews to understand the context of the abuse,
consider how that abuse might impact your representation strategies, and partner with your client
to explore how potential strategies and remedies impact her or his safety and privacy needs. Of
course, as the risks change, the clients priorities and advocacy needs will change too. Attorneys
must continually re-visit the clients safety assessment and the implications that assessment has
for legal strategizing.

Accessing Domestic Violence Resources
If your client is a survivor of domestic violence, you will want to offer community resources so
that she/he can learn more about her or his options. A consumer lawyer cannot and should not
attempt to handle all of the issues that a survivor faces. Depending upon your offices resources
and your clients needs, you may direct your client to a local domestic violence program to assist
with advocacy (non-legal and legal), safety planning, counseling, housing, and access to other
community resources. If the client wishes and grants consent, consider contacting the local
domestic violence program to coordinate your representation with their safety planning and
advocacy efforts.

Domestic violence laws and resources vary from state-to-state and community-to-community.
You may wish to learn more about domestic violence resources in your own community and
begin developing partnerships with those organizations.

Each state has a Domestic Violence Coalition, which serves as the policy arm of each
state as well as the support center for its local domestic violence programs. To find
contact information for your state coalition, go to www.nnedv.org or www.ncadv.org.
Your state coalition can connect you and/or your client with local member programs.

The Center for Survivor Agency and Justice, (202) 552.8304 and www.csaj.org, can
connect you with legal services organizations throughout the country that offer
representation and advocacy to domestic violence survivors. CSAJ also provides
training on a variety of issues related to domestic violence advocacy, as well as case-
specific strategy assistance to attorneys and advocates who work with survivors of
domestic violence.








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Additional Resources

Lundy Bancroft and Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic
Violence on Family Dynamics (2002).

Jill Davies, An Approach to Legal Advocacy with Individual Battered Women, Greater Hartford
Legal Aid (2003).

Julie Kunce Field, Screening for Domestic Violence: Meeting the Challenges of Identifying
Domestic Relations Cases Involving Domestic Violence and Developing Strategies for Those
Cases, 39 CT. REV. 4 (2002).

Barbara J. Hart, Rulemaking and Enforcement, the Violent and Controlling Tactics of Men who
Batter and Rule Compliance and Resistance - The Response of Battered Women, in I Am Not
Your Victim: Anatomy of Domestic Violence 258-263 (1996).

National Consumer Law Center, Guide to Consumer Rights for Domestic Violence Survivors
(2006).

Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive
Control, 58 ALB. L. REV. 973 (1995).

Roberta L. Valente, Screening Guidelines, in The Impact of Domestic Violence on Your Legal
Practice, The American Bar Association Commission on Domestic Violence (2
nd
ed., 2004).

Neil Websdale. Lethality Assessment Tools: A critical analysis (2000). Available at
www.vawnet.org.











This document was produced by the Consumer Rights for Domestic Violence Survivors
Initiative, a collaborative project of the Center for Survivor Agency and Justice and the
National Consumer Law Center. For more information, contact:


2001 S Street NW, Suite 400 77 Summer Street, 10
th
Floor
Washington, DC 20009 Boston, MA 02110
Phone: 202-552-8304 Phone: 617-542-8010
Website: www.csaj.org Website: www.consumerlaw.org